Equity
Equity is described by Cowel as being of two sorts, and these of contrary effects; for the one abridges and takes from the letter of the law, the other enlarges and adds thereto. Equity, in the sense in which it is distinguished from the common law, consisted originally in a body of rules and procedure which grew up separately from the common law and which were administered in different courts. The common law courts might provide no remedy for a plaintiff, and it became customary for suitors to apply to the chancellor, who as keeper of the kings conscience would give equitable relief. From the time of Edward II, or earlier, the Chancellor and his officials, later the Court of Chancery, issued writs and exercised jurisdiction which did not, override the common law but which was intended to remedy its imperfections. The court of chancery has now become the chancery division of the High Court and for convenience certain matters of equitable jurisdiction are still assigned to it, but by s 36 of the 1925 Judiciature Act both law and equity are to be administered in all divisions of the High Court and in the Court of Appeal. But where there is any conflict between the rules of common law and the rules of equity, the latter are to prevail. A few of the maxims of equity may be briefly states as follows 1) Equity acts in Personam. Ie. Against a specific person rather than against property, and so compels performance of contracts, trusts etc. 2) Equity follows the law That is, does not depart unnecessarily from common law principles 3) Equity delights in equality Ie. Attempts to adjudicate fairly or equally between the parties 4) He who seeks equity, must do equity Or a plaintiff must himself be prepared to see justice done. Similarly 5) He who comes into equity must come with clean hands And not have been guilty of improper conduct in regard to the subject matter of litigation.
Equitable i nterests
There are 2 reasons why the distinction between equitable and legal property rights remains important.
Firstly, the way in which estates and other interests in land are generated or transferred depends on this. Generally more formality is required to do this with a legal interest Secondly, legal property rights tend to be more durable than equitable rights.
The Queen v London Borough of Tower Hamlets ex parte Von Goetz Establishes equitable interests with strength, implying as Kevin Gray put it, it is quite possible to hold an equitable fee simple absolute in possession or an equitable term.
An equitable interest is an actual right of property, such as an interest under a trust. A mere equity is not a right of property but a right, usually of a procedural nature, which is ancillary to some right of property, and which limits or qualifies it in some way. It can either refer to a) a personal right (e.g. A deserted wife's equitable right to stay in her home of which the legal title is held by the husband), or b) a property right A mere equity can be a property right, but it will be one which is inferior to other equitable equitable rig hts ( Philips v Philips ). For example, the right to rescind a contract of sale formed as result of fraud is a property right. But it will not affect an equitable estate in land (even if the estate was acquired after the Right to Rescission). This is one of the exceptions to the "first in time rule" regarding priorities (see bona fide purchase in competing property rights).
